In re Marriage of Lindeman

• Decision Date: 30 July 2004
• Docket Number: No. 25886.,25886.
• Citation: In re Marriage of Lindeman, 140 S.W.3d 266 (Mo. App. 2004)
• Parties: In re the MARRIAGE OF Shawn LINDEMAN and Angela Lindeman. Shawn Lindeman, Petitioner-Appellant, and Angela Lindeman, Respondent-Respondent.
• Court: Missouri Court of Appeals

140 S.W.3d 266

In re the MARRIAGE OF Shawn LINDEMAN and Angela Lindeman Shawn Lindeman, Petitioner-Appellant, and Angela Lindeman, Respondent-Respondent.

No. 25886.

Missouri Court of Appeals, Southern District, Division One.

July 30, 2004.

Appeal from the Circuit Court, Greene County, Don Burrell, Jr., J James R. Sharp, Sharp & Bredesen, Springfield, MO, for appellant.

Susan S. Jensen, Pratt, Fossard & Jensen, L.L.C., Springfield, MO, for respondent.

JAMES K. PREWITT, Judge.

Shawn Lindeman ["Husband"] appeals certain provisions of the judgment and decree dissolving his marriage to Angela Lindeman ["Wife"].

The parties were married in August, 1992, in Christian County, Missouri. One child was born to the marriage, Christian Seth, born July 8, 1996. On or about April 16, 2001, the couple separated. Husband left the marital home to reside in Battlefield, while Wife remained at the couple's home in Springfield with their son. Husband filed his petition for dissolution on May 21, 2001, in Greene County, Missouri. Wife counter-petitioned on June 14, 2001.

The matter went to trial on August 12, 2003. Pursuant to sanctions imposed for Husband's failure to produce and respond to discovery requests, Husband's pleadings were stricken and he was not allowed to testify. He was, however, allowed to cross-examine Wife, who was the only witness to testify at trial.

The trial court's final judgment and decree of dissolution was entered August 27, 2003. Joint legal custody of the couple's son was awarded to Wife and Husband, with Wife having "primary physical custody[.]" Among other provisions, Wife was awarded maintenance, child support and attorney fees. Husband appeals, presenting nine points relied on.

Husband's first point states:

The trial court erred in striking Husband's pleadings and not allowing him to testify or produce evidence at trial because said decision was an abuse of the trial court's discretion and a misapplication of the law, in that:

a. Husband's pleadings were struck for not adequately answering discovery requests but it is unclear from the record in what manner Husband's discovery requests were inadequate or how Wife was prejudiced by Husband's alleged inadequate responses, especially where Wife used documents produced by Husband concerning his income, expenses, retirement and investments as her exhibits at trial;

b. By not allowing Husband to testify, the trial court limited the information it received and limited the chances of it fashioning a "fair" decree with regard to property and debt division, child support, custody, and maintenance, thus abandoning its responsibilities under §§ 452.330, 452.335, 452.340, and 452.375 R.S.Mo. (2000); and

c. Husband was prejudiced by the trial court striking his pleading as he was unable to produce relevant evidence concerning the origins of the credit card debts he was required to pay by the court, that a portion of his Navy retirement benefits were earned before his marriage to Wife, problems regarding visitation with his child, why he withdrew certain funds from bank and retirement accounts after the separation of the parties, and whether he engaged in an "extramarital affair" prior to the separation of the parties, which were all subjects of the trial court's decree.

Husband further states that he "complied with the vast majority of Wife's discovery requests[.]" Wife contends that "Husband failed to answer thirteen interrogatories, not counting all subparts ... [and] seven requests for production of documents."

Husband's answers to Wife's interrogatories are not provided in the record before this Court. It is Husband's burden, as appellant, to provide a complete record that allows this Court to determine the questions presented on appeal. Shields v. Shields, 59 S.W.3d 658, 661 (Mo.App.2001). Without Husband's answers to Wife's interrogatories before us, it is difficult to determine if Husband complied with the rules on answering interrogatories.

"Provisions in a divorce decree will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law." Allen v. Allen, 927 S.W.2d 881, 885 (Mo.App.1996). The burden of demonstrating error is on the party challenging the decree. Id.

Wife filed and served on Husband her First Set of Interrogatories and First Request for Production of Documents on June 14, 2001. Wife's attorney notified Husband's attorney on July 23, 2001, that said discovery was overdue and requested responses within ten days. On August 17, 2001, Wife filed a Motion to Compel Responses to Interrogatories and Request for Production of Documents, and a hearing was set for August 23, 2001. Pursuant to an agreement between parties' attorneys, the trial court sustained Wife's motion to compel, and Husband was allowed an additional ten days to respond.

Wife filed a Second Motion to Compel Responses to Interrogatories and Request for Production of Documents on September 27, 2001, and a hearing was set for October 10, 2001. On that date, the trial court ordered Husband to "answer pending discovery" by October 22, 2001, and directed that upon Husband's failure to answer, the trial court "will tax additional attorney fees." The trial court also informed the parties that the issue of taxing of attorney fees at the trial of the case-in-chief would be revisited upon Husband's failure to answer. Husband filed answers to Wife's first set of interrogatories and his response to Wife's [first] request for documents on January 14, 2002, which Wife characterized as "grossly incomplete."

On July 23 or 24, 2002, Wife filed and served on Husband her Second Set of Interrogatories and Request for Production of Documents. By letter dated August 29, 2002, counsel for Wife agreed to allow Husband until September 9, 2002, to file his discovery responses. None were provided.

On September 13, 2002, Wife filed her Third Motion to Compel Responses to Interrogatories and Request for Production of Documents and Request for Sanctions. This motion was taken up on September 18, 2002, and the trial court ordered Husband to answer and respond within ten days and that upon his failure to do so, his pleadings would be stricken. The trial court also ordered Husband to pay to Wife's attorney $300.00 "for attorney fees incurred in seeking response to discovery[,]" and provided that Husband's failure to pay such fees prior to the date of trial would result in his pleadings being stricken.

Husband's answers and responses to Wife's second set of interrogatories and request for production were not filed until October 1, 2002. Wife contended that "the information provided was almost an exact duplicate of the inadequate response filed in January 2002 ... [and] ... [n]o current information was provided."

Wife filed a Motion to Strike Petitioner's Pleadings on October 4, 2002, and a hearing was set for October 15, 2002. On that date, the trial court ordered Husband "to provide current information requested in pending discovery within seven (7) days of this date and further ordered to pay [Wife's attorney] $200 attorney fees within 30 days of this date." The order further provided that upon Husband's failure to comply, "his pleadings shall be stricken." [LF 4] Husband failed to comply, and on November 2, 2002, Husband paid the monetary sanctions imposed on September 18 and October 15.

On October 30, 2002, Wife filed her second motion to strike Husband's pleadings, alleging that discovery responses received from Husband on October 22, 2002 were "again grossly incomplete[.]" Husband filed updated answers on November 5, 2002. A hearing was set for November 7, 2002, at which time the trial court took under advisement Wife's second motion to strike, pending the filing of written suggestions due within seven days of the hearing date. Suggestions were filed by the parties on November 14, 2002.

The trial court sustained Wife's second motion to strike and on November 25, 2002, ordered that Husband's pleadings be stricken. Husband filed his motion to reconsider on December 2, 2002, and oral arguments were heard on that motion on January 27, 2003. The trial court took Husband's motion under advisement, and on January 29, 2003, Husband's motion to reconsider was denied. Husband's pleadings were stricken and at trial, only Wife testified. Husband was allowed to cross-examine Wife.

In reviewing the decision of a trial court to strike pleadings and to deny a party the right to present witnesses, our scope of review is for abuse of discretion. Crimmins v. Crimmins, 121 S.W.3d 559, 561 (Mo.App.2003). The exercise of this discretion will not be disturbed upon review unless it is exercised unjustly. Id.

Pursuant to Rules 61.01(b) and (d), a trial court may order sanctions against a disobedient party for the failure to answer interrogatories and comply with requests for production. Luster v. Gastineau, 916 S.W.2d 842, 844 (Mo.App.1996). In instances where a party fails to answer interrogatories, Rule 61.01(b)(1) provides that the trial court may enter an order striking that party's pleadings. When a party fails to produce documents or permit inspection, Rule 61.01(d) authorizes the trial court to enter an order "refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibit the disobedient party from introducing designated matters in evidence[,]" Rule 61.01(d)(1).

Here, the trial court ordered Husband to respond on four separate occasions and ordered attorney fees paid to Wife's attorney for Husband's failure to comply on two of those occasions. Prior to any imposition of sanctions, the trial court made Husband aware of the consequences of his failure to comply with the trial court's ruling, specifically that Husband's "pleadings shall be stricken."

It is within the trial court's sound discretion whether or not to impose such sanctions....